While the congressional record on the act is “filled with encomia to heterosexual marriage,” the opinion states, Congress did not explain “how denying benefits to same-sex couples will reinforce heterosexual marriage.”
And the Supreme Court has ruled, the panel said, that “moral disapproval” is not adequate to justify discrimination based on sexual orientation.
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“We must define the nature and scope of this struggle, or else it will define us,” the president said.
Thirty-eight states adopt a prohibition on same-sex marriage in either law or their constitutions. Since DOMA was passed in 1996, same-sex marriage has become legal in eight states — Massachusetts, Connecticut, New York, Iowa, New Hampshire, Vermont, Maryland and Washington — and the District of Columbia. Maryland’s and Washington’s laws have not taken effect and may be challenged in referendums.
“One virtue of federalism is that it permits this diversity of governance based on local choice, but this applies as well to the states that have chosen to legalize same-sex marriage,” Boudin wrote.
“Under current Supreme Court authority, Congress’ denial of federal benefits to same-sex couples lawfully married in Massachusetts has not been adequately supported by any permissible federal interest.”
Conservative groups criticized the ruling. “Under this rationale, if just one state decided to accept polygamy, the federal government and perhaps other states would be forced to accept it, too,” said Dale Schowengerdt, legal counsel for the Alliance Defense Fund, which describes itself as a coalition of Christian lawyers.
Boudin’s decision, which was joined by Chief Circuit Judge Sandra L. Lynch and Circuit Judge Juan R. Torruella, was the first time an appeals court has agreed with a challenge to DOMA.
But it is part of a string of legal decisions that gay-rights activists have won on same-sex marriage. Two U.S. District Court judges in California have found the same section of DOMA considered by the Boston court to be unconstitutional, and those cases will soon be considered by the U.S. Court of Appeals for the 9th Circuit in San Francisco.
Additionally, the 9th Circuit is deciding whether the full court should review a three-judge panel’s decision in February that struck down California’s Proposition 8, a voter-approved constitutional amendment that defines marriage as only between a man and a woman.
But voters have rejected same-sex marriage when it came before them in referendum, the latest example being North Carolina in May.
There were two cases in the 1st Circuit’s decision, Massachusetts v. HHS and Gill v. Office of Personnel Management. Gill was brought by seven same-sex couples married in Massachusetts and three surviving spouses of such marriages who were denied federal benefits and recognition. The decision said about 100,000 couples would be affected.
“How thrilling it is for us that the court believes in protecting our rights,” said one of the plaintiffs, Bette Jo Green, 70. She said she has been with her partner, Jo Ann Whitehead, for more than 31 years, and the two married in 2004.
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